Family Lawyers Who Mean Business

A. [8.61] Nature of the Privilege

In Illinois, the MHDDCA codifies the therapist-patient privilege as follows:

Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications. 740 ILCS 110/10(a).

The encompassing nature of the patient-therapist confidentiality was qualified in In re Doe, 964 F.2d 1325, 1328 (2d Cir. 1992), which held privileged the information that the patient had been the recipient of treatment. In this homicide case, the defendant successfully argued that unless the information sought to be disclosed directly related to the homicide’s immediate circumstance, it would be privileged from disclosure. The court went on to hold that the privilege even prevents suggestions that a party attended therapy. In Illinois, the statute specifically states: “Communication [that is privileged from disclosure] includes information which indicates that a person is a recipient.” 740 ILCS 110/2.

B. [8.62] Definitions

In Illinois, as in other statute-driven states, the MHDDCA provides a number of definitions. Section 2 limits disclosure of “any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health . . . services to a recipient.” Thus, group therapy or family therapy situations are covered by the privilege. Section 2 defines “mental health services” as including, but not being limited to, “examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation.” This statute explains that the broad nature of the term “therapist” includes all types, such as a

psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not

prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist. Id.

Even as broad as this definition is, not every type of treatment is covered by the privilege. Maxwell v. Hobart Corp., 216 Ill.App.3d 108, 576 N.E.2d 268, 159 Ill.Dec. 599 (1st Dist. 1991), involved some form of alcoholism treatment that was not considered “mental health services” as defined by this Illinois statute. Unfortunately, the issue of what kind of treatment the plaintiff actually received was not explored in sufficient detail in this product liability cause of action for the practitioner to know what proposition this case truly defines. Here, “alcoholism treatment” was narrowly defined by the court so that the MHDDCA was deemed to be of no value when the privilege was claimed. It is axiomatic that substance abuse treatment pursues all avenues of mental health, not just treatment for the specific abuse. Additionally, no claim of privilege or confidentiality 20 ILCS 305/8-102, which governs confidentiality for certain substance treatment centers, or claim of privilege under 21 U.S.C. §1175 (drug abuse prevention, treatment, and rehabilitation), 42 U.S.C. §4582, or 42 C.F.R. Part 2, was made in this case. Unfortunately, not all treatment centers or abuse counselors are covered by these very scope-limited statutes. Again, in People v. Leggans, 253 Ill.App.2d 724, 625 N.E.2d 1133, 193 Ill.Dec. 12 (5th Dist. 1993), appeal denied,155 Ill.2d 571 (1994), a defendant’s communications with a drug and alcohol rehabilitation facility were not privileged under the MHDDCA. There is also a limited privilege granted to individuals counseling victims of domestic violence under 750 ILCS 60/227, which provides that any communications or records of a domestic violence advocate or counselor (a person who has undergone 40 hours of training in domestic violence advocacy, crisis intervention, etc. and who provides services to victims through a program, whether as an employee or volunteer) and a victim, even if others are present when the information, counseling, or advocacy takes place, are protected from disclosure.

C. [8.63] Extent of the Privilege

The privilege that all of the statutory provisions ensure is derived out of the belief that therapy is founded on the premise that confidentiality is necessary to the entire patient-therapist relationship. The recipient’s trust in the confidential nature of disclosures to the therapist is a basic requirement in achieving the benefits of therapy. Without such confidentiality, it is believed that treatment and the potential cure may be forgone. A patient who believes there is a possibility of disclosure may refuse to disclose.

The patient’s innermost thoughts may be so frightening, embarrassing, shameful, or morbid that the patient in therapy will struggle to remain sick, rather than to reveal those thoughts even to himself. The possibility that the psychotherapist could be compelled to reveal those communications to anyone, let alone to broadcast them in a legal proceeding, can deter persons from seeking needed treatment and destroy treatment in progress. Catharina J. H. Dubbleday, The Psychotherapist-Client Testimonial Privilege: Defining the Professional Involved, 34 Emory L.J. 777, (1985), quoting Caesar v. Mountanos, 542 F.2d 1064, 1072 (9th Cir. 1976).

This is the same policy justification applied to the attorney-client privilege. These assertions have gained judicial acceptance in In re Westland, 48 Ill.App.3d 172, 362 N.E.2d 1153, 1156, 6 Ill.Dec. 331 (4th Dist. 1977), in which it was noted that psychiatry’s beneficial purposes can be fully realized only in the complete freedom from the danger of judicial scrutiny. The Illinois courts have cited this philosophical precept set forth in Westland and in In re Marriage of Lombaer, 200 Ill.App.3d 712, 558 N.E.2d 388, 146 Ill.Dec. 425 (1st Dist. 1990). Most recently, in Jaffee v. Redmond, 518 U.S. 1, 135 L.Ed.2d 337, 116 S.Ct. 1923, 1928 – 1929 (1996), the privilege was broadly embraced as follows:

Effective psychotherapy, . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment . . . “[t ]here is a wide agreement that confidentiality is a sine qua non for successful psychiatric treatment.” . . .

By protecting confidential communications between a psychotherapist and her patient from involuntary disclosure, the proposed privilege thus serves important private interests. . . .

The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance. [Citations omitted. ]

While the generally accepted purpose of the privilege is to encourage candid patient disclosures by removing fears of embarrassing consequences that would endanger correct and adequate diagnosis, proponents of the psychotherapist-patient privilege fail to cite any empirical research supporting the need for the privilege. Other evidence, such as the fact that therapists in England and Canada do not recognize such a privilege and do not claim that its absence has prevented effective therapy, mitigates against the conceptual construct. Jonathan Baumoel, The Beginning of the End for the Psychotherapist-Patient Privilege, 60 U.Cin.L.Rev., 797, 814 (1992).

In In re Marriage of Lombaer, supra, even the extreme nature of the facts (a mother recently released from a mental institute, who had allegedly exhibited bizarre behavior and had neglected to take her medication) did not prevent the invocation of the privilege. Justice Rizzi stated:

The statutory privilege is a legislative balancing between relationships which society thinks should be fostered through the shield of confidentiality and the interests served by disclosure of the information in court. The legislature has determined that except for limited purposes, there is more value to encouraging and sustaining this kind of relationship. 558 N.E.2d at 393. See also, Norsko v. Pfeil, 197 Ill.2d 60; 755 N.E.2d 1, 257 Ill.Dec. 899 (2001).

Ongoing treatment is not a pivotal factor in this consideration. When Mr. Lombaer raised the issue that his wife was no longer in therapy so that the court should open up her prior therapeutic treatment records, the appellate court overturned the trial court’s reliance on this argument. Relying on the Illinois statute as well as the case law, the court stated: “We are not persuaded by the argument that since the physician-patient relationship had been terminated, the privilege no longer exists.” Id.

The privilege belongs to the recipient and not to the therapist. In Renzi v. Morrison, 249 Ill.App.3d 5, 618 N.E.2d 794, 188 Ill.Dec. 244 (1st Dist. 1993), appeal denied, 152 Ill.2d 579 (1993), the therapist had voluntarily testified for one spouse in a divorce case following an invocation of the privilege by one of her marital therapy patients. Since the therapist violated the patient’s privilege, the judge, in the civil action brought by the former patient against the therapist, granted damages under §15 of the Illinois statute, holding that the therapist had acted erroneously in testifying contrary to the patient’s desire. The therapist in this case had been providing marital counseling to the couple prior to divorce proceedings. In Illinois, marriage counseling is included within the purview of confidentiality by this statute. See Martino v. Family Services Agency of Adams County, 112 Ill.App.3d 593, 445 N.E.2d 6, 67 Ill.Dec. 714 (4th Dist. 1982). When, then, is this privilege waived? In Novak v. Rathnam, 106 Ill.2d 478, 478 N.E.2d 1334, 88 Ill.Dec. 608 (1985), when the defendant called his own therapist to establish his insanity, he placed his mental condition at issue. Once waived, the privilege would continue to be waived at any future hearing. In People v. Phillips, 128 Ill.App.3d 457, 470 N.E.2d 1137, 83 Ill.Dec. 717 (5th Dist. 1984), the defendant’s disclosure of the psychologist’s testing operated as a waiver. The communications between the psychologist and the defendant were thus no longer privileged and were available for use by the state on a subsequent trial of the defendant.

D. [8.64] Balancing Test

John Wigmore developed four conditions for the application of the privilege that have gained general judicial acceptance and favor. Leila M. Foster, Illinois: A Pioneer in the Law of Mental Health Privileged Communications, 62 Ill.B.J. 668 (1974); 8 John Henry Wigmore, EVIDENCE IN TRIALS AT COMMON LAW §2285 (1961) (Wigmore). In State v. Aucoin, 362 So.2d 503 (La. 1978), his approach was endorsed in a case construing a Louisiana statute involving the physician-patient privilege. Wigmore’s criteria for balancing the privilege were as follows:

The communications must originate in a confidence that they will not be disclosed

This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.

The relation must be one which in the opinion of the community ought to be sedulously fostered .

The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [Emphasis in original. ] Wigmore at p. 527.

The first three elements are almost matters of fact, but the forth element required the court to evaluate both the patient’s privacy and the damage disclosure would cause. For convenience, this fourth element is often referred to as the “balancing test” and was the item that caused great disparity in application of the privilege in many cases. The balance to be found in custody disputes is primarily between the interests of the child’s well-being versus the right of the parent to the privacy deemed necessary for the patient-parent to make full use of and benefit from therapy. Other factors, such as the conditions under which one puts one’s own mental health into issue, the threat of danger to another, allegations or admissions of abuse, etc. are examples of conditions that counter the need for strict adherence to the privilege. Nationally, there is a plethora of conflicting authorities in the custody arena due to varying interpretations of custody claims causing one to “place one’s mental health at issue” as well as the lack of common law in this area, thereby creating a state-by-state analysis of enacted legislation as well as the open-ended language of Federal Rule of Evidence 501 which, until Jaffee v. Redmond, 518 U.S. 1, 135 L.Ed.2d 337, 116 S.Ct. 1923 (1996), provided little guidance in this area.

In Illinois, the test is codified by §10 of the MHDDCA, which specifically states that custody and divorce proceedings brought under the IMDMA do not place one’s mental health at issue. Illinois does require a two-pronged analysis before any disclosure may occur:

Records and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense, if and only to the extent the court . . . finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory . . . and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm. 740 ILCS 110/10(a)(1).

Jaffee v. Redmond, supra, eliminated this test in federal court only as it specifically reviewed the Illinois statute in a civil proceeding emanating from a police officer’s shooting of an alleged perpetrator of a crime. This case specifies:

[W]e hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. . . .

We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy. . . .

We part company with the Court of Appeals on a separate point. . . . Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. . . . [P ]articipants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” [Citation omitted. ] 116 S.Ct. at 1931, 1932.

Thus, there is no longer a balancing test or waiver if the privilege is assiduously claimed and protected in federal court.

E. [8.65] Courts’ Power to Order Mental Evaluations

To buttress the strength of the privilege and to avoid unnecessary procrastination over its use, both the legislature and the Illinois Supreme Court have granted powerful tools to establish the mental health of the relevant parties. In any criminal, civil, or administrative case, the court may order a mental health evaluation of a party through Illinois S.Ct. Rule 215(a). Effective January 1, 1996, this rule expanded its limitation on “physician” to include the full field of mental health providers allowed to perform such evaluations. Of course, as People v. English, 31 Ill.2d 301, 201 N.E.2d 455 (1964), dictates, the privilege does not apply to psychiatric evaluations ordered under the court’s direction, as this would defeat the purpose for which the court uses the power.

IMDMA §§604(b) and 605(a) allow the courts to evaluate the mental health of any of the parties in the custody dispute. The recipient must be informed of the purpose of the court-ordered evaluation. One of the purposes of these statutory rights and the Supreme Court rule is to prevent the disclosure of the mental health records of the parties. Tylitzki v. Triple X Service, Inc., 126 Ill.App.2d 144, 261 N.E.2d 533 (1st Dist. 1970), cited by Justice Rizzi in In re Marriage of Lombaer, 200 Ill.App.3d 712, 558 N.E.2d 388, 146 Ill.Dec. 425 (1st Dist. 1990), makes this apparent by stating that any necessary medical or psychological evaluations required to determine the welfare of the children can be obtained by means of court-ordered evaluations.

The only case in which the court limited the use of an Illinois S.Ct. 215(a) evaluation was In re Marriage of Cohen, 189 Ill.App.3d 418, 545 N.E.2d 362, 136 Ill.Dec. 838 (1st Dist. 1989), appeal denied, 129 Ill.2d 562 (1990), which involved serious allegations of child sexual abuse. This case held that the examination is not a matter of right. A father had been accused of sexually abusing his daughter. He attempted to invoke §215(a) for the purpose of having his wife and daughter evaluated. The trial court denied his request, noting that numerous other evaluations had taken place, subjecting the children to many probing individuals. This refusal to allow another evaluation was reversed on appeal due to heinous allegations and the facts of this case. Again, new S.Ct. Rule 215 no longer mandates that an examination may be had “for good cause shown.” The elimination of these words should allow every party the right to have its own evaluation.

F. [8.66] Disclosure by Therapist

Illinois, consistent with most other states, limits the disclosure privilege in two ways:

It allows the patient to consent to disclosure and to revoke that consent.

It allows disclosure in a limited number of circumstances that are all defined by circumstantial necessity without the patient’s consent.

740 ILCS 110/5(b) requires the following for the disclosure of privileged records:

(b) Every consent form shall be in writing and shall specify the following:

The person or agency to whom disclosure is to be made.

The purpose for which disclosure is to be made.

The nature of the information to be disclosed.

The right to inspect and copy the information to be disclosed.

The consequences of a refusal to consent, if any.

The calendar date on which the consent expires, provided that if no calendar date is stated, information may be released only on the date the consent form is received by the therapist.

The right to revoke the consent at any time.

While the patient may revoke the consent at any time, the statute also provides that “any such revocation shall have no effect on disclosures made prior thereto.” 740 ILCS 110/5(c). Thus, any revocation cannot eradicate what has gone before. However, a consent granted that prohibits redisclosure may have the effect of limiting testimony and preventing disclosure. This issue has not yet been addressed by case law.

Most statutes allow disclosure of the mental health records by the therapist to a listed finite type of persons or institutions. This list consists of associated staff of the therapist, persons conducting peer review, and in Illinois, the Institute of Juvenile Research, which performs substantial research, as well as an attorney consulted by the therapist providing services concerning legal rights in relation to the recipient. Persons in custody of the patient are also allowed to obtain information without harming the patient’s claim of privilege.

G. [8.67] Redisclosure

Illinois also requires:

No person to whom any information is disclosed under this Section may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure. 740 ILCS 110/5(d).

Notice that the pivotal word here is “person” – not limited to a therapist. Thus, even an attorney redisclosing properly or improperly released information may have liability under this Act. In Johnson v. Lincoln Christian College, 150 Ill.App.3d 733, 501 N.E.2d 1380, 103 Ill.Dec. 842 (4th Dist. 1986), the court held that even when the recipient had consented to initial disclosure, when the initial disclosure did not allow redisclosure, such further disclosure would be prevented. Even the Federal Substance Abuse Act prohibits redisclosure in its release of information form. 42 C.F.R. §2.32.

H. [8.68] Release of Children’s Privilege

In Illinois, the records of a child under the age of 12 may be released by either parent or one of the joint custodial parents without consent of the other parent.

In re Marriage of Troy S. and Rachel S., 319 Ill.App.3d 61, 745 N.E. 2d 109, 253 Ill.Dec. 335 (3 rd Dist., 2001). 740 ILCS 110/4(a)(1) allows “[a] parent or guardian of a recipient who is under 12” to release records. Thus, the above-noted cases have interpreted the statute as broadly as possible. Note also that children who have reached ages 12 through 18 come under a different disclosure standard. The child or therapist may object to information being released.

Two cases have discussed contemplation of disclosure. In People v. Sagstetter, 177 Ill.App.3d 982, 532 N.E.2d 1029, 127 Ill.Dec. 200 (2d Dist. 1988), the court ruled that the Illinois Act does not contemplate nonconsensual disclosures by the therapist to the criminal justice system. In Bond v. Pecaut, 561 F.Supp. 1037 (N.D.Ill. 1983), aff’d, 734 F.2d 18 (7th Cir. 1984), a psychologist’s letter to the state court would have been privileged if the letter had referred to anything other than ancillary matters not derived from information disclosed in therapy.

I. [8.69] Introduction of One’s Mental Condition

At the forefront of a practitioner’s mind when the patient-therapist issue arises will be the question, “Under what circumstances does a client put his own mental health at issue?”

In Illinois, one’s mental condition “shall be deemed to be introduced only if the recipient or a witness on his behalf first testifies concerning the record or communication.” 740 ILCS 110/10(a)(1). Hence, if the recipient of the treatment introduces his mental condition or any aspect of the treatment as part of his claim or defense, then, to the extent to which he has so introduced the treatments, the recipient may compromise the privilege.

Participation in child custody proceedings does not put one’s mental health at issue in Illinois. This rule was expanded in Bland v. Department of Children & Family Services, 141 Ill.App.3d 818, 490 N.E.2d 1327, 96 Ill.Dec. 122 (3d Dist. 1986), in which it was decided that one’s mental condition is not placed at issue by filing a petition for adoption.

A good example of a person “introducing her mental health as an issue at trial” is Almgren v. Rush-Presbyterian-St. Luke’s Medical Center, 162 Ill.2d 205, 642 N.E.2d 1264, 205 Ill.Dec. 147 (1994). Here, the plaintiff sued a mental institute for releasing her for an afternoon, during which she roamed semiconsciously until hit by a CTA train. An ancillary discussion of the privilege also took place regarding a lawyer’s breach of the court order not to interview a relevant psychiatric doctor.

In Gottemoller v. Gottemoller, 37 Ill.App.3d 689, 346 N.E.2d 393 (3d Dist. 1976), the wife’s authorization of the release of her psychiatric treatment records to her husband’s attorney prevented her from later claiming a privilege over the trial testimony of her psychiatrist when called by her husband. This principle was reaffirmed in Novak v. Rathnam, 106 Ill.2d 478, 478 N.E.2d 1334, 88 Ill.Dec. 608 (1985), in which the defendant placed his own mental health at issue by calling one of his treating physicians to testify at trial, but tried to prevent his other treaters from testifying for the opposition.

Subpoenas issued to obtain records or communications under the MHDDCA must append a written order issued by a judge, or the therapist is required to ignore the subpoena. 740 ILCS 110/10(d).

In 740 ILCS 110/11, the circumstances under which the records or communications may be disclosed are specified. Illinois allows disclosure “to otherwise protect the recipient or other person against a clear, imminent risk of serious physical or mental injury or disease or death being inflicted.” It is at the therapist’s sole discretion to determine when the element of “dangerousness” rises to the level requiring disclosure.

Before using this provision, a therapist must first consider one of the oldest laws impacting on the medical profession: the Hippocratic Oath, which has been a cornerstone of medical practice for over 22 centuries. Before a therapist points the finger of damnation at a patient who has called on him for help, and thus, undermines the profession’s credibility and purpose to that patient, the therapist must balance the harm to another in this mix. The difficulty of this balancing act is set forth in THE PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY (APA, 1995) (which governs all members of the American Psychiatric Association). “Because of the sensitive and private nature of the information with which the psychiatrist deals, he/she must be circumspect in the information that he/she chooses to disclose to others about a patient. The welfare of the patient must be a continuing consideration.” [Emphasis added.] PRINCIPLES, p. 6.

Paragraph 2 also states: “A psychiatrist may release confidential information only with the authorization of the patient or under proper legal compulsion.” Id. Paragraph 5 states: “Ethically the psychiatrist may disclose only that information which is relevant to a given situation. He/she should avoid offering speculation as fact.” Id. Paragraph 9 states: “When the psychiatrist is in doubt, the right of the patient to confidentiality and, by extension, to unimpaired treatment, should be given priority.” PRINCIPLES, pp. 6 – 7. Nevertheless, Paragraph 8 states that psychiatrists at times may find it necessary, in order to protect the patient or the community from imminent danger, to “reveal confidential information disclosed by the patient.” PRINCIPLES, p. 6.

The issue of “dangerousness” has sent a chill down the spine of every therapist since the rendering of the landmark decision entitled Tarasoff v. Regents of the University of California, l7 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976). In this case, a patient at the university told his therapist that he would murder a certain specified woman. Two months after the disclosure, the patient killed the woman he had threatened in therapy. The psychologist never informed the potential victim that her life was in danger. The psychologist was held liable for damages for the failure to give any warning to the threatened victim. Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185, 194 (D.Neb. 1980), expanded the warning required in Tarasoff to include a warning when the therapist could “reasonably foresee that the risk engendered by [the] patient’s condition would endanger other persons.” This ever-expanding principle seemed out of control in People v. Clark, 50 Cal.3d 583, 789 P.2d 127, 268 Cal.Rptr. 399 (1990), which held that once a therapist revealed a confidence in an endangerment situation, the privilege no longer existed. However, the Menendez brothers reversed this expanding California doctrine in Menendez v. Superior Court,3 Cal.4th 435, 834 P.2d 786, 793, 11 Cal.Rptr.2d 92 (Cal.1992), in which the court stated: ” Clark holds only that when a psychotherapist discloses a patient’s threat to the patient’s intended victim in a so-called ” Tarasoff warning,” . . . only the disclosed threat is not covered by the privilege.” [Citation omitted.]

Illinois has one further restriction rarely found in other jurisdictions. 740 ILCS 110/3(c) mandates that “[p]sychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed” to anyone except another psychologist designated by the recipient. Thus, the protocols so necessary for cross-examination are now far more difficult to obtain and use at trial.

The court in Mandziara v. Canulli, 299 Ill.App.3d 593, 701 N.E.2d 127, 233 Ill.Dec. 484 (1st Dist. 1998), held that an attorney violated the Mental Health and Developmental Disabilities Confidentiality Act when issuing a subpoena without obtaining a court order before issuance. The ex-husband, through his attorney, Mr. Canulli, brought an emergency petition to modify custody based on his ex-wife’s attempted suicide. In connection with the petition, Canulli served a subpoena duces tecum on a certain hospital seeking to obtain medical records that may have reflected the ex-wife’s fitness to retain custody. The subpoena required that the medical records be produced in court. In response to the subpoena, the custodian of records appeared in court and tendered the records to the judge, who reviewed them in open court and returned them to the custodian.

The ex-wife filed a complaint against both the hospital and Canulli alleging violation of the Mental Health and Developmental Disabilities Confidentiality Act. The appellate court held that a lawyer cannot serve a subpoena seeking to obtain access to privileged records or communications unless the subpoena is accompanied by a written court order authorizing the disclosure of the records. The issue of damages suffered proceeded to hearing.

J. [8.70] Conclusion

The therapist-patient privilege is a complex matter that requires vigilant protection against disclosure except when the “safety net” of disclosure is required to protect against threats of harm that are, all too often, disturbingly real. Like any other privilege that limits the public’s right to complete access to information, if the privilege is not fully protected, it should not survive an attack. The privilege was never intended to be both a sword and a shield.